Ellis v. Nike USA, Inc.

The Eighth Circuit Court of Appeals affirmed the dismissal with prejudice of a consumer’s putative class action against Nike USA, Inc. and a subsidiary alleging that the defendants falsely and misleadingly advertised “Sustainability Collection” products as sustainable and environmentally friendly. The plaintiff claimed that the marketing and labeling of the products led consumers to believe that the products were “sustainable”; “made with recycled fibers” which “reduce waste and our carbon footprint”; a “move to zero carbon and zero waste”; made from “sustainable materials”; and environmentally friendly. The only issue presented on appeal was whether the district court abused its discretion by dismissing the case with prejudice. The Eighth Circuit therefore did not address the district court’s conclusion that the plaintiff failed to state a claim, including because she failed to plausibly allege that the products were not made with any recycled or organic fibers. On the question of whether dismissal with prejudice was appropriate, the Eighth Circuit found no error of law or abuse of discretion, noting, among other things, that the plaintiff had failed to properly seek leave to file a second amended complaint after the defendants filed a motion to dismiss arguing that the first amended complaint contained the same “glaring pleading deficiencies” that were in the initial complaint.